The “other” planned parenthood: Wills, Trusts & Guardianship

Every parent will at one stage worry about how to protect their children in the case that something may happen to them. If you are a foreigner in the US this question may be even more pertinent as you and your kids may not share the same citizenship. How do you go about nominating a guardian? What is the legal procedure? Alison Arden Besunder can answer your questions. She is the founding attorney of Arden Besunder P.C., where she assists new and not-so-new parents with their estate planning needs. Her firm assists clients in New York City, Brooklyn, Queens, Nassau, and Suffolk Counties. You can contact Ms Besunder through CityKinder or through her details listed below the article.

Q: I want to make sure that someone is appointed as the guardian of my minor children if both me and the child’s mother pass away. How can I ensure that my kids will be protected?

A: Many of my clients are new (and not so new) parents who want to ensure their minor children are cared for in the event that both parents die. It is every parent’s right but also their responsibility to take care of this issue and to express their wishes in a legal writing. There are two circumstances to consider: what would happen to the care and raising of minor children if both parents were to die but also if both parents become disabled while the child(ren) are minors. This is critical for single parents, and step-parents or non-biological parents who live with but have not adopted the child.

The procedure to name a guardian for minor children is to nominate an individual or individuals in your Will to take legal custody of your child. This can but does not need to be the same individual(s) as the “minor’s trustee,” who will oversee the management of any finances left to the minor child.

A guardian nomination is just that: a suggestion to the Court that, in most cases, will be upheld if the individual qualifies as a fiduciary, meaning a person in a position of trust. In New York, the State of New York, at least, a person is not eligible to be a fiduciary if he or she is a “non-domiciliary alien […] except [….] one who shall serve with one or more co-fiduciaries, at least one of whom is resident in this state.” S.C.P.A. 707. That said, the Court may still appoint a non-domiciliary alien or a New York resident as a fiduciary in his or her discretion. Id. An individual who is mentally incompetent, a felon, or who otherwise “does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office” is also unfit to serve as a fiduciary, as is anyone else who is ineligible in the court’s discretion. The court may also declare as ineligible to act as a fiduciary “a person unable to read and write the English language.”

What does this mean? For international clients, it means that while they should nominate the guardian of their choice based on substance (i.e., their true qualifications in substance to provide the best care for their children), the choice is a mere nomination and is subject to the judge’s approval and order of who will raise a child and have legal custody. Second, for the many expatriates living in New York City, it means that extra care must be taken to communicate to the court why the appointment of a non-domiciliary individual as guardian is in the best interest of your minor children. These specifics can be spelled out in the Will itself or in a separate writing that should be properly executed.

The other thing to consider is that many non-US citizen parents reside in the U.S. with no real intention to leave, but are insistent that their children be raised in their home country. The thing they fail to consider is that a child who is raised in the U.S. their entire life may not want to leave the U.S. when he or she is 10, 14, 15, and their entire life is based here. It is a very different situation when the child is an infant or toddler and could easily adjust. If a parent wants the child to be repatriated to their home country, the child’s citizenship may be a factor bearing on the judge’s decision. If the parent applied for and/or obtained dual-citizenship from their home country for the child, this may be deemed evidence by the judge of the parents’ intent for their child to keep a connection to the parents’ country of origin. It has the added impact of providing a basis for which the guardian in the home country can request assistance from their own state department or diplomatic agency to repatriate the child. In the absence of dual citizenship the home country’s state department lacks standing to assist. This, together with basic border-control issues, poses an obstruction to relocating a child to another country either temporarily pending the proceeding or permanently.

In short, international clients with minor children living in the U.S. must pay particular attention to making clear in the will who will raise their child and where.

For further information and the opportunity to ask your questions related to your unique situations, join us for our recurring seminar with Alison “The ‘Other’ Planned Parenthood: Wills, Trusts and Guardianship”